05-02-2016 ecf 356 usa v david bundy - usa oppostion to david bundy bail motion

8/17/2019 05-02-2016 ECF 356 USA v DAVID BUNDY - USA Oppostion to David Bundy Bail Motion

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DANIEL G. BOGDENUnited States AttorneySTEVEN W. MYHRENICHOLAS D. DICKINSON

Assistant United States AttorneysNADIA J. AHMED

ERIN M. CREEGANSpecial Assistant United States Attorneys501 Las Vegas Blvd. South, Suite 1100Las Vegas, Nevada 89101PHONE: (702) 388-6336FAX: (702) 388-6698

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

UNITED STATES OF AMERICA,

Plaintiff,

v.

DAVID H. BUNDY,

Defendant.

)

)))))))))))

2:16-CR-00046-GMN-PAL

GOVERNMENT’S RESPONSE INOPPOSITION TO DEFENDANT’SMOTION TO RE-OPENDETENTION HEARING

The United States, by and through the undersigned, respectfully submits its

Response in Opposition to defendant David H. Bundy’s Motion to Re-Open

Detention Hearing. Doc. #297. As established herein, David Bundy submits

nothing new or material that would permit this Court to reopen the issue of

detention. Accordingly, the Court should deny the Motion to Re-Open and vacate

the hearing.

I. RELEVANT PROCEDURAL HISTORY

On March 2, 2016, a federal grand jury seated in the District of Nevada

returned a Superseding Criminal Indictment, charging defendant David H. Bundy

(“D. Bundy”) and 18 other defendants, including his father Cliven Bundy, and his

Case 2:16-cr-00046-GMN-PAL Document 356 Filed 05/02/16 Page 1 of 45


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brothers, Ryan, Ammon and Mel Bundy, with, among other things, conspiring to

assault federal officers, obstruct justice, extort federal officers, and use and

brandish a firearm in relation to a crime of violence, and the substantive offenses

that comprise the objects of the conspiracy, all in violation of Title 18, United

States Code, Sections 371; 372 111(a)(1) and (b); 1503; 1951; and 924(c).

On March 3, 2016, D. Bundy was arrested in the District of Utah pursuant

to an arrest warrant issued from the Superseding Indictment. On March 4, 2016,

D. Bundy appeared before United States Chief Magistrate Judge Brooke C. Wells

in the District of Utah for his initial appearance and Rule 5 proceedings. District

of Utah Case 2:16-mj-130-PMW (“Utah MJ Case”), Doc. #2. At this hearing, D.

Bundy waived his Rule 5 hearing, was appointed an attorney from the Federal

Public Defender’s office and the Government moved for detention. Id. A detention

hearing was scheduled for March 9, 2016. Id. On March 8, 2016, the Government

filed a memorandum proffering evidence in support of pre-trial detention. Utah MJ

Case, Doc #10; see Attachment A (Government’s Memorandum in Support of

Detention).

On March 9, 2016, Chief Magistrate Judge Wells held the detention hearing

and indicated at the outset that in addition to the government’s filed memorandum

in support of detention, she had also reviewed a binder containing defendant’s

proposed exhibits, including a number of community support letters submitted on

behalf of D. Bundy. See Def.’s Exhibit A (Transcript of March 9, 2016, Detention

Hearing), p. 3:12-20.

/////



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The Government’s argument and proffer was based on the facts and

circumstances of the instant case as set forth in the Superseding Indictment and

the facts and arguments set forth in its detention memorandum. D. Bundy’s

counsel argued for release on conditions. At the conclusion of the detention

hearing, Chief Magistrate Judge Wells ordered D. Bundy detained pending trial

and made oral findings on the record. See Def’s Exh. A at pp. 40-42.

On March 21, 2016, D. Bundy filed a Notice of Appeal of Magistrate’s

Detention Order in the District of Utah. See Utah MJ Case, Doc. #13. The

Government filed a response in opposition to the Notice of Appeal, arguing that

based on the law, the District Court in Utah lacked jurisdiction over such an

appeal. Id. at Doc. #16. The United States District Court for the District of Utah

Judge Robert Shelby noted on the docket for the appeal in that district that

Defendant filed the notice to preserve his right to appeal and that Defendant

recognized that any appeal would be heard by the assigned district court judge in

Nevada. See 2:16-cr-144-RJS, Doc. #3. To date, Defendant has not filed an appeal

of the detention order in this district.

On March 21, 2016, D. Bundy made his initial appearance in this district

and the Court recognized that the Defendant had been previously ordered detained

by Chief Magistrate Judge Brooks. Doc. # 167. On April 21, 2016, D. Bundy filed

his motion to reopen the detention hearing, attaching the transcript of the District

of Utah hearing as well as the letters by community members in support of D.

Bundy addressed to Chief Judge Brooks and which appear to be the letters

submitted at the original detention hearing. Doc. # 297, Exhibits A-F.



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II. ARGUMENT

D. Bundy’s detention hearing should not be reopened. A detention hearing

may be reopened at any time before trial if information, not known to the movant

at the time of the first hearing, is discovered, and the new information has a

material bearing on the issue of detention. See 18 U.S.C. § 3142(f)(2). Courts

strictly interpret this provision. United States v. Turino, No. 2:09–cr–132–JAD–

GWF, 2014 WL 5261292, at *1 (D. NV Oct. 15, 2014) (“if evidence was available at

the original hearing, no rehearing is granted”).

D. Bundy provides nothing new and material within the meaning of 18

U.S.C. § 3142(f) to support reopening. Obviously, he knew that he had supporters

in his community at the time of his hearing. The letters all show that his

supporters have known Bundy well before the events that gave rise to his

detention hearing.

Not only was this information known and available to Bundy at the time,

but he argued it at his detention hearing and the Court specifically considered it.

For example, when questioned about statements made by D. Bundy on Facebook

evincing a disregard for federal law and authority, Bundy’s attorney argued:

“there are so many letters and other things speaking to his character that are very

contrary to this that speak to his character as a husband, father, family man, hard

worker, all of those things.” Chief Judge Wells responded:

I don’t disagree with that. I read all those letters, they’re

kind letters based upon individual’s specific knowledge of Mr.

Bundy outside these circumstances.



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What I’m concerned with and have to apply to the factors is the

behavior that is alleged to have been evinced and the comments which

appear throughout in which disregard for federal officers of any type,

including, I suppose, this court’s order, exist. How do I concern myself

with the safety of the officers who would supervise him?

Def.’s Exh. A at 38:1-16 (emphasis added).

The record is very clear that there is nothing new here – Judge Wells

already considered this information. Although the record is not clear precisely

what letter were considered, the letters he proffers as Exhibits B through F are

specifically addressed to Judge Wells, showing, at a minimum, that the

information in these letters was available to Bundy at the time, if not the very

same information considered by the Court.

Judge Wells evaluated this information in light of all the other § 3142

factors and found that the nature and circumstances of the charged offenses, the

weight of the evidence, and the nature of the danger posed by D. Bundy’s release

outweighed the ties he had to his community.

Given this record, it is clear that D. Bundy’s community support letters do

not present new and material information under U.S.C. § 3142(f)(2) and, thus, D.

Bundy offers nothing that would merit this Court reopening the detention hearing.

The Court should, therefore, deny his motion. See United States v. Masters, No.

2:12–cr–00145–MMD, 2012 WL 4612665, at *2, n.1 (D. NV Oct. 1, 2012) (finding

that magistrate judge properly concluded the defendant had failed to present

material evidence not known at the time of the detention that would warrant

reopening the hearing and noting that the defendant conceded in his reply brief

that the magistrate judge’s decision was correct because no new evidence was



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presented); United States v. Dillon, 938 F.2d 1412, 1145 (1st Cir. 1991) (affirming

district court’s denial of motion to reopen detention hearing where the proffered

new evidence consisted of 18 character affidavits from family, friends, and

employers; “this was available to the appellant at the time of the [original

hearing]”); United States v. Hare, 873 F.2d 796, 799 (5th Cir 1989) (affirming

refusal to reopen detention hearing because “testimony of [defendant’s] family and

friends in not new evidence”).

WHEREFORE, for all the foregoing reasons, the government respectfully

requests that the Court deny the Motion to Reopen Detention Hearing and vacate

the hearing set in the Court’s April 22, 2016, Minute Order. Doc. #313.

DATED this 2nd day of May, 2016.

Respectfully,

DANIEL G. BOGDEN

United States Attorney

//s//

____________________________

STEVEN W. MYHRE

NICHOLAS D. DICKINSON

Assistant United States Attorneys

NADIA J. AHMED

ERIN M. CREEGAN

Special Assistant United States Attorneys

Attorneys for the United States



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CERTIFICATE OF SERVICE

I certify that I am an employee of the United States Attorney’s Office. A

copy of the foregoing Government’s Response in Opposition to Defendant’s

Motion to Reopen Detention Hearing was served upon counsel of record, via

Electronic Case Filing (ECF).

Dated this 2nd day of May, 2016.

/s/ Mamie A. Ott _

MAMIE A. OTT

Legal Assistant



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Attachment A



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Case 2:16-mj-00130-PMW Document 10 Filed 03/08/16 Page 1 of 37Case 2:16-cr-00046-GMN-PAL Document 356 Filed 05/02/16 Page 9 of 45


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05-02-2016 ecf 356 usa v david bundy - usa oppostion to david bundy bail motion

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